Prof. Corn on Rules of War

Texas Tech's Professor Geoffrey S. Corn writes here about the complicated Rules of War. Excerpt:

[T]here are three important aspects to a credible assertion that an attack is indiscriminate in violation of international law.

First, the assessment cannot rely solely on the adverse effects on civilians. While it is tempting to assume that civilian suffering proves illegality, the law’s focus is also on the attack decision, and not just the attack result. This means it is crucial to consider why the attack was launched, and not just the outcome. And in making this assessment, it is proper to consider the objectives of the entire attack objective, and not just individual parts of the attack.

Second, it is impossible to conclude an attack was indiscriminate without considering the value of the target attacked in respect to the military advantage to be gained. Relying on only the consequences of the attack without this consideration fails to account for the inherent weighing of quite different considerations that needs to occur at the core of this rule of war.

Finally, attack legality is assessed on a target-by-target basis. This is why it is misleading to simply cite the total number of civilian casualties, numbers that are open to criticism given they do not distinguish between uninvolved civilians and Hamas fighters.

Plus ça change, plus c'est la même chose!

Canada's GLOBAL Television reported on December 5, 2023 that according to a survey conducted by Statistics Canada, sexual assault rates within the Canadian Armed Forces (CAF) saw a "significant increase" in 2022 despite promises of reform within the military following intense scrutiny.  The results of that 2022 survey found that roughly 1,960 Regular Force members reported they were sexually assaulted either inside or outside their workplace involving a CAF member.

According to Statistics Canada, "the rate of  sexual assault - which includes sexual attacks,  unwanted sexual touching , and sexual activity where the victim was unable to consent - represents an increase from rates reported in 2018 when previous iterations of the survey were conducted."

According to Global Television, in reaction to this deplorable news report the Minister of National Defence - the Honorable Bill Blair - noted that: " The results of this survey also show us clearly that there is a great deal more work to do, and they reaffirm that the culture of the Canadian Armed Forces must continue to evolve and change." 

NOTE.  Statistics Canada is a national statistics agency which produces statistical data and insights to help Canadians better understand their country's population, resources, economy, society and culture. In addition to conducting a nation-wide Census every five years, Statistics Canada currently conduct about 350 active surveys on virtually all aspects of Canadian life.

Jamaica's "good-faith certificates" case

Topping the list of high-profile cases Jamaica's courts will address this year:

Defence Force Soldiers and the Businessman’s Murder Case

One of the most significant proceedings involves three soldiers from the Jamaica Defence Force. They stand accused of the alleged murder of businessman Keith Clarke, who found his brutal end during a military raid in 2010, being shot 21 times. A preliminary hearing, dedicated to discussing the ‘good-faith certificates’ in this case, is slated for February.

2010? This is not speedy justice.

Nigeria & the doctrine of compact

An interesting online post from Nigeria presents a topic that we discuss from time to time in this forum, but which, arguably, is often a secondary issue.  Typically, we tend to focus on the limitations of the application of military law or jurisdiction, with some contributors suggesting that the exercise of military jurisdiction or "military justice" should be curtailed in times of peace or when misconduct arises within the borders of the nation state (contrasted with misconduct arising while armed forces are deployed).

In this article published online by Tekedia (a Boston-based online learning institution), Stanley Alieke, a Nigeria-based lawyer, discussed the "doctrine of compact" applied within Nigeria.  This doctrine, purportedly incorporated within Nigeria's Armed Forces Act, 2004, represents the principle that military personnel are subject principally to military law and jurisdiction, and not civil law and jurisdiction.

There are exceptions.  These exceptions include when a military member is not performing military duty or when the offence is purely a civil offence.  In other words, the ouster of civil jurisdiction is not absolute.

The issue addressed in the article can be viewed as the inverse of much of what we tend to discuss in this forum.  Those of us from Common Law jurisdictions are accustomed to the concurrent jurisdiction of both military and civil law, particularly as it concerns offences.  A common point of discussion concerns the boundary of where military jurisdiction should be limited.  A common complaint by some is that military jurisdiction is applied where it should be civil jurisdiction.

This article, arising out of Nigeria, is a reminder that the inverse issue can also arise where the military community seeks to assert exemption or immunity from the ordinary function of civil law.

CDN Defence Minister says he wants to change the drinking culture on military bases!

On December 15, 2023, the Canadian Broadcasting Corporation( CBC) announced that the Minister of National Defence, the Honorable Bill Blair, has concluded that the government has “no plans to ban alcohol consumption on Canadian Armed Forces [CAF] establishment." This announcement came on the heels of a recent Statistics Canada survey which found that 33 per cent of CAF members who were sexually assaulted in 2022 believed that the perpetrator’s use of alcohol or drugs was a contributing factor in the said assault. Asked about the results of that survey and the military practice of requiring all serving CAF members to belong to a military mess, the Minister admitted that he was not aware that CAF members were actually ‘compelled to actually join the mess.”

The following day, the Department of National Defence [DND] confirmed ‘that membership in messes is actually mandatary.” The defence department also said messes on military bases are "an important part of military life" that permit members to socialize and "engage in leisure activities, while at the same time continuing to promote military values and traditions. DND added that “all CAF members must belong to a mess appropriate to their rank".

In May 2023, the author of this post opined on this issue in a separate news release published by CBC News

"There is no good reason for the CAF as an institution to permit, to continue to finance, schedule and arrange for social activities involving the consumption of alcohol while members are deployed on duty and serving in uniform on a defence establishment,"

"No other profession would tolerate having members consume alcohol while on duty, or on the premises of their professional place of work."